Writ petition against Gota not genuine: CA

• President had repository executive power not plenary  
• In the absence of a Cabinet, the Constitution confers on the President ministerial duties, as the repository executive power of the people   

 By Shehan Chamika Silva   

The Court of Appeal (CA) yesterday accepted the arguments of Romesh de Silva PC and Gamini Marapana PC that the writ application disputing Gotabaya Rajapaksa’s citizenship was filed by the petitioners for collateral purposes and not as a genuine public interest litigation as ‘public-spirited citizens concerned to see that the law is obeyed in the interest of all’.   

The Bench comprising Justices Yasantha Kodagoda (CA/President), Arjuna Obeysekera and Mahinda Samayawardane also observed in the Order the fact that “a party cannot ask for a Writ as of right. It is a discretionary relief as well as an equitable relief. When granting such a relief, the conduct of the party applying for it is intensely relevant.”
Citing several precedents, the Court also had noted in the Order that“It is trite law that any person or persons seeking to invoke the discretionary powers of this Court, must come to Court with clean hands.”

Delivering the reasons for the order given on the writ application filed against Gotabaya Rajapaksa’s citizenship, the Court of Appeal said during the time period where there is no Cabinet, the Constitution confers on the President to be in charge of any ministerial duty, as the repository executive power of the people, therefore, he had the power to sign the impugned dual citizenship certificate of Gotabaya Rajapaksa in 2005.   

“During the intervening period of a few days between the new President assuming office and appointing the Cabinet of Ministers and subjects and functions assigned to such ministers, it is the view of this Court that the Constitution had conferred a duty on the President to be in charge of all such subjects and functions not assigned to any Minister.”

However, the Court of Appeal also said the President should act during such an intervening period in a reasonable manner according to the Constitution. “It is not to say that the President can govern the country arbitrarily neglecting the appointment of the Cabinet of Ministers,” the Court said.   

The Court of Appeal did not agree with the respondents’ argument that the President had the plenary power to exercise such power.   

“It is important to note that the President does not derive the ‘Executive’ component of the people’s sovereignty from any other source than from the Constitution and other written laws and is circumscribed by the Constitution. Therefore, this Court cannot agree with the first part of the submission of the respondents which was premised on the footing that the President is conferred with ‘plenary executive power’, which enabled him to issue the ‘Dual Citizenship”.